Settling the current conflict in Sabah

A solution for the armed conflict and horror inflected to the people in East Sabah now is of the highest urgency. It is interesting to understand the perspective to resolve on the claim of Sabah brought upon Royal Security Forces of self proclaimed Sultan of Sulu Jamalul D Kiram III, from the thoughts of Former Chief Justice of the Phillipines Supreme Court Artemio V Panganiban

With Due Respect

Understanding the Sabah dispute

ByArtemio V. Panganiban
Philippine Daily Inquirer

11:58 pm | Saturday, March 2nd, 2013

To understand (1) the claim of the Sultan of Sulu over Sabah, (2) the standoff in Lahad Datu town in Sabah, (3) the stand-down admonition of President Aquino directing the followers of Sultan Jamalul Kiram III led by his brother Datu Raja Muda Agbimuddin Kiram to withdraw and return peacefully to the Philippines, and (4) the enforcement actions of the Malaysian authorities that sadly resulted in death and injury, I think it is best to begin by discussing the concepts of sovereignty and ownership.

Sovereignty is the perpetual and absolute power of a state (not of an individual) to command obedience within its territory. This power is manifested through the state's constitution and laws, and is enforced by governmental agencies and officials. When needed, the state's military and police forces can be called to back this enforcement.

Sovereignty has external and internal aspects, external being the state's ability to act without foreign intervention. It is often equated with independence. Internal sovereignty refers to the power of the state to rule within its borders and to govern both citizens (at home and abroad) and aliens staying in its territory. In the exercise of internal sovereignty, it maintains peace and order, fixes the relationships of people, and governs the rights to own properties situated within its borders.

Ownership, on the other hand, has a limited scope. It generally refers to the right to control a thing (including land), especially its possession, use, disposition and recovery. Ownership rights, especially over land and natural resources, are controlled and regulated by the state.

Sultan's claim. In brief, the Sultan of Sulu claims ownership, not sovereignty, over a huge tract of land called Sabah. He alleges that his forebears leased the property to the British North Borneo Company, which in turn ceded its leasehold rights to Malaysia. Up to now, rentals for the property are paid the sultan.

In 1963, after an alleged referendum showing that the residents did not want to be part of the Philippines or of the Sultanate of Sulu, Malaysia incorporated Sabah as part of its national territory. Since that time, Malaysia has exercised sovereignty over the area, keeping peace and order, regulating the relations among the people, and governing the ownership, possession and enjoyment of property rights.

Obviously, then, the sultan's claim is subject to the sovereign power of Malaysia and Malaysian laws. The stealthy entry of the sultan's followers into Sabah violated Malaysian immigration and other laws; hence, they could be held accountable by Malaysian authorities. Even assuming that as proof of ownership, rentals are being paid in perpetuity, the sultan, as lessor, cannot deprive Malaysia, as lessee, of its possessory rights by force and illegal entry.

Since the sultan and his followers are Filipino citizens, the Philippines started diplomatic initiatives with Malaysia to secure their safety and wellbeing, and to enable them to leave Sabah voluntarily and peacefully.

However, as such citizens, they may be held answerable, after the observance of due process, for violations of Philippine laws. The Department of Justice is reportedly poised to investigate them for "inciting to war, or giving motives for reprisals; illegal possession of firearms; illegal assembly" and other crimes.

If, say, a Malaysian sultan is granted ownership rights by a past colonizer of the Philippines (like Spain) over a vast tract of land in Mindanao, the armed followers of that Malaysian sultan cannot just cross Philippine borders and occupy such property without the permission of the Philippines, regardless of whether Malaysia or the sultan has pending claims of sovereignty or ownership. By parity of reasoning, the Philippine government, in the exercise of its sovereignty, can take immigration, ejectment and other enforcement actions.

Philippine claim. During the term of President Diosdado Macapagal—in the 1960s, at about the same time that Malaysia took over Sabah—the Philippines asserted a sovereign claim over the property, then known as North Borneo. Since then, however, the claim has largely remained dormant.

The Philippine Constitution "renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."

Moreover, the United Nations Charter (Art. 51) obligates its members, including the Philippines, to settle international disputes only by peaceful means—that is, by negotiation, good offices, enquiry, mediation, conciliation, arbitration, judicial settlement in the International Court of Justice, resort to regional agencies or arrangements, and other peaceful methods. The Philippines cannot employ war or other nonpeaceful ways to resolve the dispute.

To conclude, I believe the Philippines should continue pressing its sovereign claim via the peaceful methods I mentioned. Meanwhile, the Sultanate of Sulu should abandon nonlegal methods and respect the actual and existing sovereignty of Malaysia. If the sultan so desires, he may avail himself of the internal legal processes there to validate his ownership claims.

Should the Philippines succeed in its peaceful quest, then the sultan may continue his ownership claims in the Philippines pursuant to Philippine laws. This, I think, is the peaceful and legal way of settling the dispute.

* * *

As such, it is time for the Phillipines authorities to act on the matter and arrest Jamalul Kiram III and his men in accordance with the laws of the republic. Clearly he and his agents are responsible for the armed conflict brought upon on the people of Sabah, particularly in Lahad Datu on Friday 1 March and Semporna 2 March. In all, eight Royal Malaysian Policemen were slain.

It is incomprehensible that President Benigno Aquino III continues to demand armed men loyal to Jamalul Kiram III end the stand off and surrender to the Royal Malaysian Police and authorities, where as the latter and his agents continues to issue statements and give media conferences freely from Taugig City, near Manila.

It is clear that their presence in Lahad Datu is not about "Settling in Sabah". Sabah have accommodated hundreds of thousands of Sulu people, who have settled and established their livelihood in the prosperity of the state. All, without the need of any of them carrying firearms, intimidate Sabahans and break the Malaysian law.

This group under Raja Muda Azzimudie Kiram who took position in Kg. Tanduo 130km from Lahad Datu since 9 February obviously committed intrusion.

Drama after drama prevailed. The initial demand was to have the Royal Security Forces of Sulu recognized and the Sulu people are not subjected to go back to the Phillipines. Then the issue about Sabah being part of the traditional homeland arise and these armed intruders are agents for the Sulu people want to make Sabah their new home.

The Malaysian authorities have been exercising diplomacy and trying to get them to return to where ever the came from without any provocation is a demonstration that deadly force was never the primary choice to end the stand off. In fact, windows for them to go back uneventfully were opened in many ways which include three deadlines extended. Only after 17 days, the Home Minister issued the ultimatum.

The fact that they flew the 'white flag' (an international sign of ceasefire or surrender) on Friday morning with the deception to draw the Royal Malaysian Police commandoes on patrol and shot Insp. Zulkilfi Mamat and Cpl. Sabaruddin Daud when they stepped closer to the armed Sulu intruders in good faith, is a demonstration they were ill intent and waging a war. Then, when Zulkifli's men appeared from their cover to recover the two slain bodies, they were shelled with mortar filed artillery.

Three VAT commandoes were injured from that shootout.

The shocking episode of the ambush on the 57 Policemen in Kampung Sri Jaya, Siminul, Semporna on Saturday night saw two Special Branch Officers and four other ranks killed in action. One of the men was slaughtered alive after he was captured in the ambush on the 'kampung air'. An injured Policemen whose hand almost chopped off, recollected the story how inhuman and brutal these Sulu intruders were.

Prime Minister Dato' Sri Mohd. Najib Tun Razak issued a media statement on the Operation Sulu a while ago.

Probably former Chief Justice Panganiban feels that diplomacy is the way out of this mess. However, it was these Sulu armed intruders who drew first blood. Negotiation time for these brutal people is over. They have to pay their dues with blood too.

Chief Justice Panganiban must be able to appreciate that in Malaysia, the Federation of Malaysia Constitution prevails. Criminals must be dealt with according with the provisions within the parameters of the law. That include murder, kidnapping and most of all, waging a war against His Majesty Seri Paduka Baginda Yang DiPertuan Agong and the Federation of Malaysia.

May God watch over those who are upholding the law and righteousness.

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